The basic unit of contract prose is, surprise surprise, the sentence. One issue of contract layout is that of aggregation—how do you group sentences into sections and, if necessary, articles? The other is that of division—when is it appropriate to break up a sentence?
Division involves enumerated clauses. A contract sentence might consist of introductory text and a series of parallel elements. It might make such a sentence easier to read if you enumerate the parallel elements. And if the parallel elements are long enough, it might make them easier to read if you treat each of them as if it were a separate paragraph—if you were to tabulate them.
This post relates to introductory text.
If the enumerated clauses are anything other than short and simple, the introductory text will likely include the following and end with a colon. Today I had occasion to consider the position of the following in introductory text.
The obvious place to put the following is at the end of the introductory text, as in this example (example A):
The license granted to Acme under section 6.1 includes the right to sublicense, on condition that the terms of the sublicense include the following:
But consider this example (example B):
The Committee Chair must do the following with respect to each meeting of the Committee:
And this one (example C):
Acme shall transfer to Widgetco each of the following, with its certificate of title attached:
I suggest that the position of the following in examples B and C is unobjectionable.
Now consider this example (example D):
If any of the following occurs and the Licensor notifies Acme that it
wishes to terminate[is terminating] this agreement in accordance with this section 6 , including[and includes] in that notice its reason for wishing to terminate[terminating] this agreement, this agreement will terminate when Acme receives that notice:
I suggest that in this example, the following is too remote from the tabulated enumerated clauses that follow. Instead of the following, I used a new defined term, Licensor Termination Event, and put immediately below this sentence a subsection containing the autonomous definition of that defined term. Here’s what the revised sentence looks like:
If a Licensor Termination Event occurs and the Licensor notifies Acme that it
wishes to terminate[is terminating] this agreement in accordance with this section 6 , including[and includes] in that notice its reason for wishing to terminate[terminating] this agreement, this agreement will terminate when Acme receives that notice.
So I offer the following general proposition: It’s OK for the following not to be placed at the end of the introductory text preceding a colon and a set of enumerated clauses if the following occurs in a single independent clause or the last independent clause in a compound sentence. The independent clause can either stand on its own or have one or more subordinate clauses, as in examples B and C. (Go here for Wikipedia on sentence clause structure.) But the following is too remote when it’s separated from the colon by one or more other independent clauses, as in example D.